Opinion by

The appellant, R. B. Hayden, brought this action in.equity on May 5, 1881, against Henry T. Ortkiss to quiet his title to a certain tract of land and to enjoin the defendant from further entry upon it, as well as to recover a portion of it that the latter had enclosed.

On December 21, 1881, Ortkiss brought an ordinary action of ejectment against the appellant for the same land, and on October 25, 1882, and before the trial of this action, obtained a verdict and judgment for it. By an amended answer filed in this case he relied upon the judgment in the ordinary action to defeat a recovery in this one. The appellant responded that an appeal had been taken and the judgment superseded; and that hence it was not final and could not be regarded upon the trial of this action. The court below seems to have acted upon this view, and, after considering this case upon its merits, it rendered a judgment against the appellant.

Both cases have been appealed to this court, and the judgment in the ordinary action has been affirmed; and it is proper to consider this fact, although the cases have not been consolidated, and it is decisive of this appeal.

Judgment affirmed.